Civil Procedure Commons^™

Disobedience And Contempt, Margit Livingston

Washington Law Review

A court's power to impose contempt sanctions on recalcitrant individuals is essential to ensure orderly judicial proceedings and obedience of judicial decrees. Despite repeated efforts to distinguish between civil and criminal contempt and the procedures required for each, the U.S. Supreme Court arguably has failed to delineate a precise demarcation between the two that considers both the due process interests of alleged contemnors and the remedial needs of party plaintiffs. This Article suggests that the Court's latest major decision on the differences between civil and criminal contempt, International Union, United Mine Workers v. Bagwell, represents the high water mark …

Still Adjusting To Markman: A Prescription For The Timing Of Claim Construction Hearings, William F. Lee, Anita K. Krug

Articles

This Article argues that, in most cases, there is an optimal time for holding the Markman hearing.

Part II provides a short summary of both the Federal Circuit's holding in Markman and the rationale behind the Supreme Court's affirmance of that holding. It then delves into the predictable effects of Markman, as well as into the maze of questions that the decision has engendered and the ways in which the district courts have answered those questions.

Part III discusses the issue of the timing of claim construction hearings, presenting at the outset the possible alternatives. It argues that holding …

Sheldon V. Fettig: Interpreting The Substitute Service Of Process Statute In Washington, Dana Richardson

Washington Law Review

In Sheldon v. Fettig, the Washington Supreme Court announced a new rule for interpreting Washington's substitute service of process statute. This new rule calls for a liberal reading of the substitute service of process statute to better effect its legislative purpose, thus overruling the line of cases calling for strict construction of the substitute service of process statute. This Note analyzes the basis of the former rule, the Sheldon rule, and the Sheldon dissent's proposed rule. It concludes that the former rule of interpretation should be retained because it preserves canons of strict construction and better protects defendants' due …

International Parallel Litigation: Disposition Of Duplicative Civil Proceedings In The United States And Japan, Yoshimasa Furuta

Washington International Law Journal

Although duplicative proceedings involve various negative effects, if motivated by legitimate reasons, parallel litigation may be justified. Therefore, regulation of international parallel litigation should be based on a close examination of the legitimacy of the litigants' motives, which should then be balanced against negative effects. In this comparative study of the parallel litigation practice in the United States and Japan, the contrast between the two countries is attributed to the underlying differences in each country's social and legal traditions. Despite the differences in their practice, however, each legal system offers a model that may be successfully adopted by the other …

Washington Courts Get Stingy: Improper Denial Of Attorney's Fees Under 42 U.S.C. §§ 1983 And 1988, Brian Buckley

Washington Law Review

42 U.S.C. §§ 1983 and 1988 allow persons to challenge state laws that violate their federal constitutional rights and to recover their attorney's fees should they prevail. This Comment analyzes two recent Washington cases in which the plaintiffs were denied fee recoveries despite having successfully challenged state statutes. This Comment then argues that fee awards should have been granted in both cases and that in the future fee awards should rarely be denied when plaintiffs invalidate state law under §§ 1983 and 1988.

Fisons: Will It Tame The Beast Of Discovery Abuse?, Barbara J. Gorham

Washington Law Review

In WSPIEA v. Fisons, the Washington Supreme Court held that evasive and misleading discovery tactics violate Civil Rule 26(g). This Note examines the discovery tactics used in Fisons against the backdrop of the historic failure of courts to impose adequate sanctions for discovery abuse. It argues that courts must do more to deter discovery abuse by clearly articulating the requirements of the rules governing discovery, imposing severe sanctions for discovery abuse, and closely monitoring discovery in large, complex cases.

Looking Out For Mary Carter: Collusive Settlement Agreements In Washington Tort Litigation, J. Michael Philips

Washington Law Review

Courts and commentators disagree as to the propriety of Mary Carter agreements, pseudo-settlement devices used in multiparty litigation that unite the interests of a plaintiff and a cooperating defendant, and maintain that defendant's presence at trial. Most courts tolerate these arrangements provided that they are disclosed, while a distinct minority render them void. Washington courts have not espoused a definite position, although recent decisions suggest a tolerant stance. This Comment argues that the use of Mary Carters is inconsistent with Washington tort law, and that Washington courts should therefore prohibit them entirely. This may be accomplished by treating all Mary …

Due Process In Civil Forfeiture Cases In Washington After Tellevik V. Real Property, Zhihong Pan

Washington Law Review

In Tellevik v. Real Property, the Washington Supreme Court held that the government's seizure of real property through an ex parte proceeding complied with the due process requirements of the federal Constitution. This Note examines the Tellevik decision in light of United States Supreme Court case law on procedural due process and lower federal court rulings in real property forfeiture cases. It argues that the Tellevik court, in reaching its decision, misapplied federal case law and concludes that due process requires an opportunity for a full hearing before the government can deprive an owner of real property.

The Protected Staus Of Opinion Work Product: A Misconduct Exception, Andrea L. Borgford

Washington Law Review

Opinion work product generally has remained immune from discovery, although two increasingly problematic exceptions have developed to counter this immunity. The vague "at-issue" exception permits discovery of documented mental impressions when those mental impressions are central to the subject matter of the suit. The overly narrow "crime-fraud" exception opens opinion work product to discovery when it has been developed in furtherance of a crime or fraud. Because these redundant yet inadequate exceptions share common elements and goals, courts should streamline this important area of discovery law by condensing them into a new misconduct exception.

Jury Instructions On Joint And Several Liability In Washington State, Julie K. Weaver

Washington Law Review

Neither the Washington Legislature nor the Washington Supreme Court has addressed the issue of instructing a jury on Washington's doctrine of modified joint and several liability and its effects. Historically, most states prevented courts from instructing juries on the effects of their answers to special verdicts. Washington, however, has no history of keeping a jury uninformed of the effects of its answers. This Comment concludes that Washington courts should continue the practice of informing juries of the effects of their answers and instruct juries on joint and several liability and its effects.

Equity Renewed: Preliminary Injunctions To Secure Potential Money Judgments, Rhonda Wasserman

Washington Law Review

Whenever a plaintiff sues a defendant for money damages, she runs the risk that the defendant will attempt to render herself unable to satisfy the expected money judgment by hiding or dissipating assets. Although most states have statutes that authorize prejudgment attachment of the defendant's assets to prevent this result, the attachment statutes are poorly designed to reduce the plaintiff's risk. The attachment statutes are both under- and over-inclusive: they do not authorize the attachment of property located outside the state, thereby failing to prevent the dissipation of all of the defendant's property, yet they grant the plaintiff a lien …

Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Majorie A. Silver

Washington Law Review

Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that first amendment values support a judicial role …

Is 28 U.S.C. § 1404(A) A Federal Forum-Shopping Statute?, Michaael B. Rodden

Washington Law Review

In 1948, Congress enacted section 1404(a) of Tit;e 28 to allow transfers between federal district courts. Congress intended the statute to promote convenience in the federal courts. The statute does not specify which state's law applies following a transfer, but in 1964, in Van Dusen v. Barrack, the Supreme Court determined that the state law of the transferor court must apply following defendant-initiated transfers. The Van Dusen Court reasoned that application of the statute should promote convenience and uniformity and discourage forum-shopping in the federal courts. In 1990, in Ferens v. John Deere Co., the Supreme Court held that the …

Factual Frivolity: Sanctioning Clients Under Rule 11—Business Guides, Inc. V. Chromatic Communications Enterprises, 892 F.2d 802 (9th Cir. 1989), Cert. Granted, 110 S. Ct. 3235 (1990), Peter Ramels

Washington Law Review

In Business Guides, Inc v. Chromatic Communications Enterprises, the Ninth Circuit held that clients can be sanctioned under Federal Rule of Civil Procedure 11, if they fail to make an objectively reasonable inquiry to ensure that documents submitted to a court are well grounded in fact. In this case, the Ninth Circuit rejected the subjective good faith standard adopted by the Second Circuit, which held in Calloway v. Marvel Entertainment Group, that clients can be sanctioned only if they knowingly submit claims that are not well grounded in fact. This Note approves of the Business Guides decision, but suggests that …

Crossing The Line Between Rough Remedial Justice And Prohibited Punishment: Civil Penalty Violates The Double Jeopardy Clause—United States V. Halper, 109 S. Ct. 1892 (1989), Lynn C. Hall

Washington Law Review

Historically, the constitutional guarantee against double jeopardy has been triggered primarily in criminal prosecutions. It has not encompassed civil monetary penalties. In United States v. Halper, the Supreme Court expanded double jeopardy protection. The Court held that government imposition of a civil monetary penalty on a defendant who has been criminally convicted for the same offense is punishment to the extent that the penalty clearly exceeds compensation. The punitive portion of the civil penalty, according to the Court, is multiple punishment prohibited by the Double Jeopardy Clause. This Note examines Halper and its effect on legislatures, prosecutors, and courts. The …

Equitable Tolling Of Statutory Benefit Time Limitations: A Congressional Intent Analysis, David D. Doran

Washington Law Review

Courts toll time limitations that limit a statutory right to sue when tolling is consonant with congressional intent. Courts have left open, however, whether to extend this congressional intent analysis to toll time limitations that limit a statutory right to receive a benefit. This Comment analyzes how the United States Supreme Court's 1988 decision in INS v. Pangilinan affects the power of courts to equitably toll time limitations limiting the application period for a statutory benefit. The Comment concludes that these benefit time limitations should be tollable when they are consonant with congressional intent.

Judges Against Juries—Appellate Review Of Federal Civil Jury Verdicts, Eric Schnapper

Articles

This Article seeks to assess the treatment of civil jury verdicts by the federal courts of appeals during the two decades in which the Supreme Court has refused to scrutinize the actions of the circuit courts. Part I summarizes the manner in which the Supreme Court, prior to 1968, aggressively enforced the seventh amendment. Part II, focusing on a one-year period between the fall of 1984 and the fall of 1985, describes the actions of the courts of appeals in resolving the 208 reported cases in which a party challenged the sufficiency of the evidence to support a jury verdict. …

Constitutional Challenges To Washington's Limit On Noneconomic Damages In Cases Of Personal Injury And Death, Marco De Sa E Silva

Washington Law Review

This Comment considers the constitutionality of the Washington cap on noneconomic damages. The Comment briefly reviews the recent legislation of medical malpractice and tort reform damages ceilings and judicial decisions on the constitutionality of such ceilings. The Comment then analyzes the constitutionality of the Washington limit under the substantive due process and equal protection guarantees of the federal and state constitutions. Because under the federal constitution a court should give the statute only minimal scrutiny, the statute probably does not offend fourteenth amendment protections. Under the Washington Constitution, however, a court should give the statute intermediate scrutiny. Under intermediate scrutiny …

Constitutional Challenges To Washington's Limit On Noneconomic Damages In Cases Of Personal Injury And Death, Marco De Sa E Silva

Washington Law Review

This Comment considers the constitutionality of the Washington cap on noneconomic damages. The Comment briefly reviews the recent legislation of medical malpractice and tort reform damages ceilings and judicial decisions on the constitutionality of such ceilings. The Comment then analyzes the constitutionality of the Washington limit under the substantive due process and equal protection guarantees of the federal and state constitutions. Because under the federal constitution a court should give the statute only minimal scrutiny, the statute probably does not offend fourteenth amendment protections. Under the Washington Constitution, however, a court should give the statute intermediate scrutiny. Under intermediate scrutiny …

Choice Of Law In Washington—The Evolution Continues, Philip A. Trautman

Washington Law Review

Twenty years ago an analysis of choice of law principles in the state of Washington concluded with the following observation: "The evolutionary process has finally begun in Washington. It will be a long time in developing. The limitations on that development are only those imposed by the ingenuity, insights and degree of in-depth research and work of counsel and the court."' Much has happened in the twenty years since that statement was made. On the national level, the United States Supreme Court has for the most part withdrawn from the scene and has imposed little control upon the states in …

Choice Of Law In Washington—The Evolution Continues, Philip A. Trautman

Washington Law Review

Twenty years ago an analysis of choice of law principles in the state of Washington concluded with the following observation: "The evolutionary process has finally begun in Washington. It will be a long time in developing. The limitations on that development are only those imposed by the ingenuity, insights and degree of in-depth research and work of counsel and the court."' Much has happened in the twenty years since that statement was made. On the national level, the United States Supreme Court has for the most part withdrawn from the scene and has imposed little control upon the states in …

The Federal Rules In State Courts: A Survey Of State Court Systems Of Civil Procedure, John B. Oakley, Arthur F. Coon

Washington Law Review

In this article we present a new survey of the civil procedures of the fifty states and the District of Columbia. We seek to identify those jurisdictions that have systematically replicated the Federal Rules as the basis for practice before their civil courts. We also seek to identify states whose civil procedures are more loosely modeled on the Federal Rules, paying special attention to each state's procedural disparity from or conformity to the federal model for the pleading of a civil case.

Discretionary Review Of Trial Court Decisions Under The Washington Rules Of Appellate Procedure, Geoffrey Crooks

Washington Law Review

The Washington Rules of Appellate Procedure (RAP) became effective July 1, 1976. These rules completely replaced all prior rules governing appellate procedure. Among the most important changes from prior practice was the creation of discretionary review as one of only two methods for seeking review of trial court decisions. The former procedures for seeking review, particularly interlocutory review, "by extraordinary writs of review, certiorari, mandamus, prohibition, and other writs formerly considered necessary and proper to the complete exercise of appellate and revisory jurisdiction," were superseded. The drafters' comment explains that the intent behind this change was to simplify and clarify …

Jury Instructions: A Bibliography. Part I: Civil Jury Instructions, Cheryl R. Nyberg, Carol Boast

Librarians' Articles

Pattern jury instructions are used by trial judges to explain the law to jurors in language that they can understand and that provide consistency from one trial to another. This bibliography contains references to 156 recent and dated compilations of civil jury instructions. An index to acronyms for civil jury instructions is included.

Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman

Washington Law Review

The preclusive effect of a judgment is an age-old topic. Why then add more to the existing commentary? Principally, it is because within recent years there have been noteworthy cases and significant developments in the governing principles. The purposes of this article are to recall the orthodoxy of the subject, to note the changes that have been occurring, and to suggest what may be forthcoming.

Claim And Issue Preclusion In Civil Litigation In Washington, Philip A. Trautman

Washington Law Review

The preclusive effect of a judgment is an age-old topic. Why then add more to the existing commentary? Principally, it is because within recent years there have been noteworthy cases and significant developments in the governing principles. The purposes of this article are to recall the orthodoxy of the subject, to note the changes that have been occurring, and to suggest what may be forthcoming.

State Law In Federal Courts: The Implications Of De Novo Review—In Re Mclinn, 739 F.2d 1395 (9th Cir. 1984), Wendy E. Russell

Washington Law Review

In In re McLinn, the Ninth Circuit Court of Appeals rejected this traditional reliance on the district court's determination of state law and held that issues of state law in federal court will be reviewed under a new, de novo standard. The McLinn case reveals a dilemma in the treatment of state law in federal courts. The Erie doctrine requires federal courts to ascertain and apply state law, and gives them a broad responsibility for doing so. At the same time federal courts are unable to accurately predict and apply unresolved issues of state law. This Note discusses the doctrine …

Can Civil Rule 52(A) Peacefully Co-Exist With Independent Review In Actual Malice Cases? Bose Corp. V. Consumers Union, 104 S. Ct. 1949 (1984), Cathy Parker

Washington Law Review

This Note examines Bose to determine whether the Court intended to totally reject Rule 52(a) as completely inapplicable in determinations of actual malice. It concludes that independent review should not replace Rule 52(a) in actual malice cases but rather should serve a separate function to ensure that the reasoning of district courts complies with constitutional legal principles. The Note further suggests that Bose created a new rule of law protecting the media from suit where defendants have simply used "imprecise language" in reporting. In addition, because of the ambiguitites in the Court's opinion, the case can support not only the …

The Jury's Historic Domain In Complex Cases, Roger W. Kirst

Washington Law Review

Part I of this article will review the major developments in the complexity debate. Part II will discuss the development and modem employment of the judge-jury historical test. Part III will examine how the judge-jury historical test accommodates both judicial control of the jury and a political role for the jury. Part IV will discuss how application of the judge-jury historical test will permit judges to use new or expanded powers, such as direct judicial factfinding on some issues in complex cases. Part V will compare the judge-jury historical test with other approaches to the complexity problem.

Insurance Law And Asbestosis—When Is Coverage Of A Progressive Diease Triggered?—Keene Corporation V. Insurance Company Of North America, 667 F.2d 1034 (D.C. Cir. 1981), Cert. Denied, 102 S. Ct. 1644 (1982), Rebecca Cochran Earnest

Washington Law Review

In Keene Corp. v. Insurance Co. of North America, the United States Court of Appeals for the District of Columbia integrated those approaches, holding that insurance coverage is triggered both by exposure to asbestos and by development and manifestation of a related disease. Each insurer covering any period during this process is liable for indemnification of the manufacturer and for defense costs. This liability is limited, however, to policy coverage, and many be reduced by the policy's other-insurance clause. The court also held that the manufacturer is not proportionately liable for the periods during which it was uninsured. Thus, the …